Abstract

This empirical study examines the effects of a rule requiring lawyers to confer with opposing counsel regarding settlement and ADR early in litigation and to report the results of that discussion to the court. A comparison of civil litigators’ practices before and after the rule was adopted showed no apparent increase in early ADR discussions or in early settlements, the rule’s ultimate goal. After the rule was adopted, lawyers did become more likely to discuss ADR at some point during the litigation, albeit not when prescribed by the rule. Enforcing the requirement to report to the court did not seem to affect whether lawyers held early discussions, but did seem to increase the likelihood that lawyers filed that report. The article concludes by exploring what the findings of this and other studies suggest about the potential effectiveness of “confer and report” rules as well as other means of facilitating earlier discussions and settlements.

Wissler, Roselle and Dauber, Bob, Leading Horses to Water: The Impact of an ADR ‘Confer and Report’ Rule (2005). The Justice System Journal, Vol. 26, p. 253, 2005. Available at SSRN: https://ssrn.com/abstract=1724989

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